By: Madaline George, Harris Institute Fellow
May 16, 2019
A new global convention on preventing and punishing crimes against humanity is one step closer to reality. The UN International Law Commission (ILC) began its Second Reading of Draft Articles following a unanimous decision by Members of the Commission to send the Articles to the Commission’s Drafting Committee on May 7, 2019.
The Commission was established by the General Assembly in 1947 to “initiate studies and make recommendations for the purpose of . . . encouraging the progressive development of international law and its codification.” The ILC consists of 34 individuals from different countries, whose expertise reflects a broad spectrum of specialties and practical experience within the field of international law. Members are drawn from the various segments of the international legal community, such as academia, the diplomatic corps, government ministries, and international organizations. In addition to crimes against humanity, other topics currently before the Commission include “immunity of State officials from foreign criminal jurisdiction,” “protection of the environment in relation to armed conflicts,” “peremptory norms of general international law (jus cogens),” “succession of States in respect of State responsibility,” and “general principles of law.”
The Commission has been working on the topic of crimes against humanity since 2014, in part based on the work of the Harris Institute’s Crimes Against Humanity Initiative. It completed a First Reading of the Draft Articles on a global convention for crimes against humanity in 2017 and requested comments from governments, international organizations, and others. The Commission received what is thought to be a record number of comments, with 39 States, seven international organizations, and approximately 700 NGOs or individuals submitting their observations. The Crimes Against Humanity Initiative Steering Committee submitted comments in November 2018.
The Commission began its 71st Session in Geneva on April 29th by considering the comments received on the Draft Articles as well as the Fourth Report on crimes against humanity by Special Rapporteur Sean Murphy.
Overall, comments were generally positive, with governments and others noting the significance of this new treaty and expressing pleasure that in its current form it would not conflict with the Rome Statute of the International Criminal Court, but rather could complement it. Germany, for example, noted:
The Convention would not only complement treaty law on core crimes, but would foster inter-state cooperation with regard to their investigation, prosecution and punishment. . . . The Statute [of the International Criminal Court] is not focused on steps that States should be taking to prevent and punish crimes against humanity. A Convention on Crimes against Humanity would in this respect close a gap in the existing international legal framework. Germany believes that a Convention on Crimes against Humanity would contribute to the implementation of the complementarity provisions of the Rome Statute . . . .
Likewise, Japan remarked that “[i]n addition to the Rome Statute of the International Criminal Court, which regulates ‘vertical relationships’ between the Court and its States Parties, the current work, which creates ‘horizontal relationships’ among states, will lead to a strengthening of the effort of the international community for preventing those crimes and punishing their perpetrators.”
Not all States had as positive responses, however. Greece commented: “we are not entirely convinced about the desirability and the necessity of a convention addressing exclusively that category of crimes” and are “of the view that the entry into force of the Rome Statute and the establishment of the International Criminal Court has rendered to a large extent unnecessary the elaboration of a convention on the crimes against humanity. “
Comments on the Fourth Report from Members of the Commission were generally positive. Their focus on the specific language of particular articles, as opposed to larger structural concerns, was indicative of the overall quality of the work as it currently stands. Although many Members commented on the Mutual Legal Assistance Initiative, which I have written about elsewhere, there was a general agreement that this should not interfere with the work of the ILC on this topic. Rather, collaboration between the Commission and the Initiative could lead to a strengthening of both projects.
In conjunction with the ILC’s Summer Session, the War Crimes Committee of the International Bar Association organized a Discussion on the Draft Articles on Crimes Against Humanity at the Palais des Nations on May 3rd. Co-hosted by the Permanent Mission of the Principality of Liechtenstein and the Permanent Mission of the Kingdom of the Netherlands, the event was well attended by representatives of many countries, Members of the International Law Commission (ILC), and individuals from international organizations and civil society. The speakers included Leila Sadat, Chair of the Crimes Against Humanity Initiative Steering Committee; Robert Rath, former President of the Trial Chamber of the Special Tribunal for Lebanon, and former Director of the Geneva Academy of International Humanitarian Law and Human Rights; Vincent de Graaf, Legal Counsel for the International Law Division of the Netherlands Ministry of Foreign Affairs; Shannon Raj Singh, IBA War Crimes Committee Special Rapporteur on the ILC Draft Articles on Crimes Against Humanity and Associate Legal Officer at the Special Tribunal for Lebanon; Federica D’Alessandra, Co-Chair of the IBA War Crimes Committee and Executive Director of the Oxford Programme on International Peace and Security at the Blavatnik School of Government’s Institute for Ethics, Law and Armed Conflict; and Hugo Relva, Legal Adviser for Amnesty International’s International Justice Team, Law and Policy Program. Speakers reflected on the ILC’s process, offered constructive comments on the Draft Articles ahead of the Drafting Committee’s work, and briefly discussed how the ILC’s work on this topic relates to the Mutual Legal Assistance Initiative.
The ILC Drafting Committee has already reviewed this topic and issued updated Draft Articles, with commentary to be completed by the end of July. International lawyers, experts, and civil society members who have been championing this cause for the last decade are hopeful that a new convention will then be adopted by the UN General Assembly or by a Diplomatic Conference in 2019 or 2020, and, as Sierra Leone noted in its comments, “join the pantheon of remarkable International Law Commission contributions to the progressive development of international law and its codification.”